26 Ga. App. 13 | Ga. Ct. App. | 1920
Only the 3d and 4th headnotes need elaboration. The plaintiff in error and others were indicted for burglary. Upon his separate trial he was convicted. His motion for a new trial was overruled, and he excepted.
The 3d headnote deals with the refusal of the judge to declare a mistrial. One of the attorneys assisting the State in prosecuting the case made in his argument to the jury the following remark: “ Gentlemen of the jury, the crime which defendant has committed is a very aggravated one, and you ought to fix the punishment in this case at such a term of years as will prevent him from ever committing such a crime again. His punishment should not be light.” A mistrial was asked for (1) “because counsel for the State has no right to dictate to the jury the amount of punishment to be fixed by them, the matter of punishment being exclusively for the jury,” and (2) “ because the argument is highly prejudicial to the rights of the defendant.” By the act of the General Assembly approved August 18, 1919 (Ga. L. 1919, p. 387), it is provided “ that the jury in their verdict on the trial of all cases of felony not punishable by life imprisonment shall prescribe a minimum and maximum term which shall be within the minimum and maximum prescribed by law as the punishment for said crime.” Under this law we think it perfectly legitimate for counsel in their argument to the jury to discuss what would be a proper minimum and maximum term to be fixed by the verdict. To do this is not to “ dictate to the jury the amount of punishment to be fixed by them;” nor, under repeated rulings of our appellate courts, can it be said that for the prosecuting attorney to tell the jury “ the crime which defendant has committed is a very aggravated one”
In the 4th headnote it is stated that “the evidence authorized the verdict.” Is this true ? It is clearly shown that the storehouse of W. J. O’Quinn & Sons was broken into and certain articles stolen therefrom. It is sought to connect the plaintiff in error with the burglary by showing that soon after it was committed some of the things stolen were found in his possession, to wit, a gun, some automobile tires, and a piece of taffeta. But the evidence fails to identify the tires and taffeta, which the State sought to show were in the possession of the accused, as the identical tires and taffeta which were lost from the store. In Cannon v. State, 12 Ga. App. 637 (1 a) (77 S. E. 920), it was held: “A conviction of burglary is not supported by proof that the accused sold a pair of shoes similar to shoes kept in the store alleged to have been burglarized, but which were not identified by any stock mark or other peculiarity, and were of a kind sold by other dealers in the same vicinity, there being no other evidence to connect the accused with the burglary, except the fact that he afterwards left that locality, and at the time of his arrest, two years later, was in the State of Alabama.’ In Rayfield v. State, 5 Ga. App. 816 (63 S. E. 920), it was held: “ In a case of burglary, where the guilt of the accused depends upon the possession of an article alleged to have been contained in the house burglarized, it is essential that the identity of the article found in hig possession with the article which is
When all the evidence, including the statement made by plaintiff in error to Emory Dixon, as shown by the evidence of Emory Dixon, is considered, we think it sufficient to identify the plaintiff in error as one of the guilty parties. It is true that he attempted to explain his possession of the gun by saying that he bought it from Marvin Patterson, a joint defendant. This Patterson denied. “Whether an explanation which the accused makes of his possession-of property recently stolen is consistent with his innocence is exclusively a 'question of fact for determination by the jury, and this court has no right to interfere with that determinanation, unless it is wholly unsupported by the evidence, or by any reasonable theory deducible therefrom.” Jester v. State, 23 Ga. App. 132 (1) (97 S. E. 563). The question whether the accused made a reasonable and satisfactory explanation of his possession of the gun having been passed upon by the jury adversely to the defendant, and the trial judge, who had some discretion in granting a new trial on disputed questions of fact, having approved the verdict, this court will not interfere.
Judgment affirmed.
